White House itself is choosing which immigration courts get to close amid COVID-19
As state and local courtrooms across the country have shuttered their doors, immigration courtroom closures are being decided on a case-by-case basis by the White House itself, according to records obtained by the Miami Herald.
For almost two weeks, immigration judges across the country, as well as prosecutors and immigration lawyers, have banded together to demand that the government close down their courts amid the COVID-19 crisis. Many say they are being kept at work despite having been exposed to the coronavirus at a time when everyone is being told to practice social distancing.
According to an email obtained by the Herald, immigration court staffers and judges at a courthouse were told by court management on Wednesday that the decisions to close are out of their control.
“Decisions for closure are beyond the agency level; but rather are forwarded to [the Department of Justice] and ultimately the White House,” the email said. “Please understand that decisions for court closures are based upon individual incidents at each respective court. I have not been privy to the incidents that ultimately led to the closure[s].”
Over the last week, federal officials at the Justice Department’s Executive Office for Immigration Review have been slowly closing down certain courthouses. Announcements of court closings have been made via midnight tweets without any explanation — even to court staff — on how the government is picking which courts to keep open.
Because immigration court is an administrative part of the Department of Justice, all decisions regarding court procedures are made by the executive branch — something that some immigration judges say concerns them during this health crisis because of President Donald Trump’s aggressive immigration agenda.
Unlike other courts that are part of the judicial branch, immigration judges ultimately report to Attorney General William Barr, who reports directly to the president.
“The politicization of the immigration courts has now infected the decision-making process of the agency as to the health and well-being of immigration judges, staff and all who appear before the court,” said A. Ashley Tabaddor, president of the union that represents all U.S. immigration judges.
The lack of communication during the global pandemic has made immigration judges, prosecutors and court staff anxious. Though the government recently canceled all preliminary hearings at all courtrooms, which has lowered attendance, judges are still concerned about their own health as well as their families’ because courthouses are still crowded by court goers and employees.
In almost a dozen letters, the employees have asked that the government consider their plight and at least explain why some courts are being prioritized over others. The DOJ and the White House have not responded to their various requests for a telephone meeting.
According to three court staff members, employees have been told in meetings that the directive to shut down courthouses is coming “from the very top of the administration.”
Immigration officials confirmed to the Herald that the president’s Office of Management and Budget makes all final decisions, but would not say why the office has refused to close some courts and not others, and how those decisions are being made.
“The [president’s office] evaluates requests for the closure of federal buildings and leased space that the Government occupies,” said Kathryn Mattingly, an EOIR spokesperson. The Executive Office for Immigration Review “confirms that, following careful evaluation of the circumstances in each court location, it requests permission from that Office of the Executive Branch before executing a closure, temporary or permanent.”
Mattingly would not elaborate on what the agency means by “individual incidents” or comment on the email’s content. White House officials wouldn’t comment either, but forwarded the Herald’s request to the president’s Office of Personnel Management.
But that office denies having the final say. It told the Herald Thursday that it is allowing local and state governments to make that decision on their own, and wouldn’t comment on EOIR’s claim that the decision is above their pay grade.
“Over the past three months, [we] and the White House have issued guidance to protect our federal workers and ensure essential government functions remained operating,” an Office of Personnel Management spokesperson told the Herald in an email. “As the situation has unfolded, states, localities and individual courts have had maximum flexibilities to telework employees as they are able while still providing mission critical services to the American people. From the beginning, the Trump Administration has been very clear that we take this virus very seriously and ask all Americans to follow President Trump’s 15-day guidance to slow the spread.”
Though the government has shut down a handful of courts across the country one by one, dozens remain open, despite recommendations from the Centers for Disease Control and Prevention, as well as the president, that the public avoid gatherings of more than 10 people. The government also issued a directive that all immigration courts take down CDC coronavirus posters, though it later rescinded that.
“The health of no one seems to be their primary concern,” Tabaddor said. “We are guessing that ‘incidents’ refers to potential exposure to coronavirus at the courts. We’ve heard that people in management were told that they can’t put anything relating to COVID-19 or coronavirus in any email unless it’s been cleared. ”
In hopes of making a case for for their courthouses, judges and legal staff from courtrooms in all states are putting their concerns in writing and sending them up the chain — including to state and local governments.
“We’re including anything that has to do with the public health of anybody in our courts as well as anybody that may have seen anyone that has been exposed, or anybody that may have been exposed at any particular court,” Tabaddor said. “We are basically trying to get other governments to step in and save us.”
In a letter to Bitta Mostofi, a commissioner of the Mayor’s Office of Immigrant Affairs in New York City, the judges’ union asked the local government to take action.
“At this time, the Department of Justice has not taken the proposed action, and the immigration courts have been ordered to function nearly unabated,” the letter said. “We are concerned for a host of reasons related to the health and safety of our judges, court staff, and the parties that participate in these hearings since every hour we learn of more individuals who have contracted COVID-19 symptoms and who either are currently or have been very recently at the immigration court.”
The letter cited that multiple attorneys who have visited the courthouse, as well as an employee in the same building, have reported having flu-like symptoms but have been cleared without being tested for the virus.
“What is of real concern is that we simply don’t know who has contracted this virus since carriers can be asymptomatic for long periods,” the letter said. “On a health and safety level, it is clear that the failure to act will take a human toll that cannot be underestimated given the dire reporting coming out of the office of the President of the United States, the Centers for Disease Control, the Office of the Governor of New York, and the Office of our own New York City Mayor, Bill De Blasio.”
On Thursday, court staff in Los Angeles were told that a United States Citizenship and Immigration Services employee who had visited the building was confirmed to have COVID-19, federal sources told the Herald. The court remains open. In San Juan, Puerto Rico, all court staff have been told they have to physically report to work despite an executive order issued by the governor of Puerto Rico urging all people to stay home and observe social distancing. In Portland, a staff member told the Herald that they have also been told to go to work despite having a family member in the healthcare field who has been exposed to the coronavirus.
Back at the courthouses, immigration judges are doing all they can to try to keep away from crowds and other people in general — that includes calling in sick.
On Thursday, six out of 25 Miami judges called in sick. Fifteen out of 22 judges did the same in San Francisco, as well as nine out of 37 in New York. Sources say employees at downtown Miami’s immigration court are planning on reaching out to county officials soon.
But according to the Executive Office for Immigration Review documents obtained by the Herald, in light of the public health crisis, the federal government has already expanded a work-from-home system where judges and staff would be able to work remotely.
In order to do so, certain employees at closed courthouses would have to sign a “Telework Program Records Management Procedures and Employee Certification” agreement. In the agreement, certain staff are told how records are to be kept under lock and key when they’re at home. They are also told how to properly transport and transfer the confidential records, as well as the required security measures.
Denise Slavin, a retired immigration judge, told the Herald that the immigration system “has long had the ability to let people work from home. In fact, many judges do various types of work from home (for example, keeping up with reading developing case law) on an unpaid basis, again for years.”
Slavin served as an immigration judge for 20 years in Miami-Dade before retiring from a Baltimore immigration court last year. She’s also president emerita of the judges’ union.
She added: “No good reason has been given for why the agency could not allow work from home on some basis during the current pandemic crisis.”
This story was originally published March 19, 2020 at 5:48 PM.
